Birth arrangements, interventions and the art (not science) of capacity

In NHS Trust v P [2019] EWCOP 23, Williams J was asked to endorse the covert carrying out (under general anaesthetic) of a Caesarean section on a young woman, JP.  JP, who had learning disabilities (the extent and impact of which were the subject of detailed consideration discussed below), was seen by the community midwife in February 2019 and was pregnant.  She was in a relationship but at that time was living at home with her mother and spending time at her boyfriend’s family home.  Her due date was 14 July 2019.   Over the ensuing 4 months, the community midwifery team, clinicians from the relevant NHS Trust, a learning disabilities team, and local authority adult and children’s social workers had been involved with JP and her pregnancy.  By 11 May, she had moved out of her mother’s home into a supported living placement.

The team at the applicant Trust eventually concluded that the only safe way to manage the labour for JP was for her to have a caesarean section under general anaesthetic. That was contrary to JP’s wishes; she had expressed a wish to have a natural birth, and hence the care plan would involve an element of deception.    The plan also envisaged that the local authority would take steps to remove JP’s baby would be removed from her after birth (whether temporarily or permanently was not clear from the judgment).

The Trust did not make the application for declarations as to JP’s capacity and best interests until 31 May, by which time JP was roughly 33 weeks pregnant.  Williams J was unclear why this was the case, and noted that:

7. The listing of the final hearing on a date between the 36th and 37th weeks of her pregnancy introduced unnecessary pressure into the process. Unless it is unavoidable because of late awareness of a pregnancy, I see no reason why it should not be possible for these applications to be issued and heard before they become time critical.


On the Trust’s application, Williams J expressed himself concerned as to the evidence of JP’s decision-making capacity.  The COP3, completed by JP’s consultant obstetrician and gynaecologist, Dr Sullivan, was founded upon a diagnosis of “Microcephaly (behavioural disorder).”  Williams J declined to determine JP’s capacity on the basis of the doctor’s evidence, supported by hospital notes, but he declined to do so, holding, at paragraph 25 that:

25. […] I consider that where an applicant Trust asserts that a patient is suffering from a condition such as microcephaly leading to a significant learning difficulty that appropriate evidence demonstrating the condition (microcephaly) and its consequences (learning disability or significant learning difficulties) is placed before the court. Whilst I would not rule out the possibility of a consultant obstetrician and gynaecologist, particularly one with the expertise of Dr Sullivan, providing the only evidence of a learning disability, it seems to me far from satisfactory in matters of such profound importance to JP for the evidence of the impairment or disturbance in the functioning of the mind or brain to come from a clinician other than a consultant psychiatrist or psychologist, particularly where it is known that JP is known to a psychiatric team. Where such evidence is likely to be available because JP is and has been under the care of a learning disabilities team for some 2 ½ years the first port of call for such information ought to be from that specialist team, preferably the lead consultant.

The proceedings were adjourned (for a short period) to enable confirmation as to the impairment or disturbance from JP’s learning disability psychiatrist.  Ultimately, on the basis of the combined evidence, Williams J declared himself:

28. [….] satisfied on the basis of the medical evidence set out above that JP currently lacks capacity both to conduct these proceedings and to take a decision for herself on the issue of her medical treatment relating to her ante-natal care and the delivery. In particular she is unable to make a decision for herself because she does not understand the information relevant to the decision and is unable to use or weigh that information as part of the process of making the decision. The evidence from the health visitor and Dr Sullivan make it clear that many attempts have been made to convey information in a way tailored to JP’s learning disability about the process of delivery and the risks attendant upon it and the options available but because of her learning disability JP has been unable to understand that information or to use or weigh it. This inability to make a decision for herself is caused by the impairment or disturbance of the functioning of her mind or brain arising from her diagnosed learning disability. The evidence of the efforts made by the health visitor, learning disability support and Dr Sullivan make clear there is no means by which she could currently be enabled to make a decision. The lack of capacity is likely to be permanent but will certainly endure until after the baby is born.

Best interests

With specific reference to the element of deception, Williams J directed himself that:

21. It is a fact of the proposed care plan that it will involve an element of deception of JP. In NHS Trust-v-K and Ors [2012] EWCOP 2922; Re AB [2016] EWCOP 66; Re P [2018] EWCOP 10 and NHS Trust (1) and (2) -v-FG [2014] EWCOP 30 the court has confirmed that deception can be compliant with the individuals Article 8 rights provided the best interests exercise has been carried out. It seems to me that if it is in JP’s best interests for deception or misrepresentation to take place then the court would be obliged to authorise that. The question of the level of deception would no doubt feed into the evaluation of whether the best interests of JP were met by the plan which involved that deception; the greater the deception the more it might potentially weigh against JP’s best interest and vice versa but as a matter of principle seems to me that deception cannot be a bar to authorisation of a procedure. To hold otherwise would be to supplant the best interests of JP by some other principle, perhaps of public policy, that the court should not condone white lies.

Williams J accepted the medical evidence that, objectively, a vaginal delivery was likely to be profoundly distressing for JP and extremely risky in terms of her health, and that the “alternative of a planned caesarean under general anaesthetic is the least worst of all of the options that exist.”  All the clinicians and JP’s support worker agreed that the proposed plan was in her best interests, as did the Official Solicitor – who, via the solicitor instructed on JP’s behalf – had been unable to engage with her.

Williams J noted that:

41. In so far as it has been possible to discuss matters with JP it is clear that her wish is to give birth naturally. It is clear that she wishes to retain autonomy over what happens and her body. Those are very important factors.

42. Section 4(6) requires that in evaluating ‘best interests’ I consider past and present wishes, beliefs and values that would be likely to influence JP’s decision if he or she had capacity and the other factors she would be likely to consider if she or she were able to do so. The evidence demonstrates that JP does not tolerate pain well and welcomes intervention which reduces pain. She appears to believe that gas and air will eliminate the pain of childbirth. Regrettably that is likely to be an erroneous belief. It is more likely that JP would experience considerable pain, discomfort and distress from the process of childbirth. This is in part a natural physical consequence but the emotional distress that she might experience will in my view be all the greater because she does not understand truly what will be happening to her. If she were able to understand the great physical and emotional toll that giving birth naturally can give rise to it seems likely that she would wish for an intervention that would minimise or eradicate that pain. Were she to have capacity I conclude that she would, along with many other expectant mothers, opt for an elective caesarean probably under general anaesthetic.

Williams J noted that the following matters weighed against the approval of the proposed treatment plan:

43. i) It is against JP’s expressed wishes. She is likely to experience distress, distrust, anger, frustration at both the deception that may be necessary and the carrying out of a surgical procedure against her will in respect of such a profoundly important matter. This is likely to be all the greater because it is proposed that the baby will be removed from her care.

ii) It appears likely to be against the expressed wishes of some family members close to her, including the putative father of the baby.

iii) There are risks associated with the administration of general anaesthetic in the hospital environment.

iv) There are far higher risks associated with the administration of anaesthetics outside the hospital environment if that became necessary.


44. Taking a broad approach to the factors which bear upon JP’s best interests I am satisfied that it is in her best interests overall to approve the proposed treatment plan. The risks attendant upon an attempted vaginal delivery are so high that they plainly outweigh the risks linked to the proposed treatment plan. The other disadvantages to JP of approving the proposed treatment plan are not such as to outweigh the overall medical advantages to her of approving it. The reality is that this is a case where the proposed treatment plan is the least worst option. There is no ideal solution.


Because of the way in which the application had been brought, Williams J had had to make his order first and then finalise his judgment subsequently.  Before it was finalised, he received:

48. […] the happy news that JP has indeed gone into labour, I believe on the 19 June, and had delivered her baby without the care plan I had authorised being implemented. Thus JP, against my evaluation of the probabilities, was able to give birth to her baby naturally. The capacity for individuals to confound judges’ assessments is a reminder (to me at least) of the gap between probability and actuality.

 It is not obvious from the postscript whether JP’s baby was, in fact, removed.


This case stands as a reminder both of the ‘high-end’ nature of the interventions that the Court of Protection can be invited to make in obstetric cases, and of the importance of ensuring that where judicial endorsement for such interventions are being sought that the need is recognised at an early stage.  It also serves as a reminder of the need for in care in establishing the nature of the material impairment or disturbance in the functioning of the mind or brain and the causative nexus between that impairment/disturbance and the functional inability to make the decision in question.  And, as the judge wryly noted, the outcome of the case shows that the assessment and determination of capacity is as much an art as it is a science (hence, by way of shameless plug, the importance of the work being done under the auspices of the Mental Health and Justice project to refine the practice of that art)

Finally, in terms of representation, this case could be added to the list of those discussed in this article where we might feel uneasy at the “best interests” construction of the function of litigation friends.  Whilst there is no reason at all to think that all concerned with the Official Solicitor’s office did not direct themselves very carefully before agreeing with the plan as being in JP’s best interests, the fact remains that she did not have anyone before the court actively advancing arguments supporting her clear wish to retain autonomy over what happens and her body.

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